Cooper v. Cooper

NOT
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED

Appeal
from the Circuit Court for Polk County; John Radabaugh,
Judge.

Susan
J. Silverman, Sarasota, for Appellant.

David
R. Carmichael of Boswell & Dunlap, LLP, Bartow, for
Appellee.

KELLY,
JUDGE

Rodney
Lane Cooper appeals from the final judgment dissolving his
marriage to Christine Quitco Cooper. We affirm the trial
court's determination of the former wife's need for
permanent alimony but reverse the amount of the award because
the judgment fails to include the necessary findings of fact
to support it. We also reverse the portion of the judgment
ordering the former husband to maintain a life insurance
policy to secure the alimony award due to the lack of
findings to support that requirement. We affirm all other
aspects of the judgment without discussion.

In the
judgment, the trial court states that the former
husband's income is "in excess of $160, 000 per
year." It orders him to pay his former wife $6000 per
month in permanent periodic alimony, as well as $900 per
month in retroactive alimony. The former husband contends
that the amount is excessive and that the judgment lacks the
necessary findings to support the award. We agree.

"The
ability to pay alimony must be based on the party's net
income." Conlin v. Conlin, 212 So.3d 487, 488
(Fla. 2d DCA 2017); see also Badgley v. Sanchez, 165
So.3d 742, 744 (Fla. 4th DCA 2015) ("The judgment is
also deficient for failing to look to the parties'
net incomes in assessing need and ability to
pay."); Kingsbury v. Kingsbury, 116 So.3d 473,
474 (Fla. 1st DCA 2013) ("Because the trial court failed
to make a finding of Mr. Kingsbury's net income, we
reverse the award of alimony and remand for further
findings."). Here, the judgment states the
"parties' annual salary and bonuses averaged nearly
one hundred sixty thousand dollars" and that the former
husband "has the ability to immediately continue to earn
an income in excess of $160, 000.00 per year." The
judgment makes no finding regarding the former husband's
net income, and this court cannot ascertain whether the trial
court determined the former husband's net income in
fashioning the appropriate award. Therefore, we reverse the
alimony award and remand with directions to the trial court
to make specific findings as to the former husband's
ability to pay alimony based on his net income and to modify
the award if necessary. See Conlin, 212 So.3d at
490; Badgley, 165 So.3d at 745; Kingsbury,
116 So.3d at 475. The trial court also failed to address the
tax consequences of the alimony award on the former
husband's net income. See § 61.08(2)(h),
Fla. Stat. (2012) ("In determining whether to award
alimony . . . the court shall consider . . . [t]he tax
treatment and consequences to both parties of any alimony
award, including the designation of all or a portion of the
payment as a nontaxable, nondeductible payment."). On
remand, the trial court shall consider these consequences and
adjust the award accordingly. See Librizzi v.
Librizzi, 228 So.3d 593, 595 (Fla. 2d DCA 2017).

We also
reverse the portion of the judgment that requires the former
husband to secure his alimony obligation with a $300, 000
life insurance policy. "[I]n determining whether to
secure support awards, the trial court should consider the
need for such insurance, the cost and availability of such
insurance, and the financial impact upon the obligor."
Plichta v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d
DCA 2005). "In the absence of special circumstances, a
spouse cannot be required to maintain life insurance for the
purpose of securing an alimony obligation." Solomon
v. Solomon,861 So.2d 1218, 1221 (Fla. 2d DCA 2003). The
former wife acknowledges that the judgment contains no
findings related to the life insurance requirement.
Therefore, we reverse as to this issue and remand for the
trial court to make specific findings to justify the
imposition of this obligation. See Massam v. Massam,
993 So.2d 1022, 1025 (Fla. 2d DCA 2008).

Affirmed
in part, reversed in part, and remanded for further
...

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